Tsarnaev’s lawyers demand communication restrictions be lifted

Federal prosecutors squared off in court with attorneys for accused Boston Marathon bomber Dzhokhar Tsarnaevon Tuesday as both sides prepare to bring the high-profile terrorism case to trial.

Should the government’s attorneys have their wish, a jury will
begin to weigh in on the case in around one year’s time with a
trial that would start next autumn. Legal counsel for the ethnic
Chechen man argued in court this week that more time is needed,
however, and again asked for restrictions on their client to be
relaxed.

United States District Court Judge George A. O’Toole Jr. did not
decide on a date for the trial to get underway during Tuesday’s
hearing, but did tell prosecutors that they don’t have long to
figure out if they’ll ask for a jury to consider the death
penalty when 20-year-old Tsarnaev eventually has his day in
court.

Tsarnaev was not present at Tuesday’s hearing, but attorneys on
both sides of the case nonetheless spent roughly 90 minutes
trying to prepare for an unprecedented terrorism case sure to
bring more complications en route to its eventual start.

Prosecutors in the office of US Attorney Carmen Ortiz said
Tuesday that they will decide within a week whether or not
they’ll request capital punishment as a possible sentence if
Tsarnaev is found guilty. He is accused of detonating twin
pressure-cooker bombs at the Boston Marathon in April with the
assistance of his 26-year-old brother, Tamerlan Tsarnaev, who was
killed by police during a manhunt for the suspects that occurred
days later outside of Boston.

Once Ortiz’s office makes a determination, US Attorney General
Eric Holder will have until January 31 to decide if the federal
government should pursue the death penalty.

Before the case even goes to trial, though, Tsarnaev’s counsel
says the government must release more documents about the April
15 incident to ensure a fair hearing. They also believe unfair
restrictions are being imposed on their client.

Of particular contention at the moment, at least among defense
attorneys, is the government’s insistence that special
administrative measures, or SAMs, are in place to prohibit how
much access Tsarnaev has to people outside of the prison where he
is being held. Defense attorney Timothy Watkins said the SAMs in
place now require lawyers to be on hand for any “dissemination of
information” to a third party, which presents an unusual barrier
with regards to sharing intelligence among potential witnesses.

“The problem is who gets to decide which [materials] are
legitimate materials related to defense and which aren’t,”
Watkins said according to Cambridge Chronicle.
“Given the qualifications and the clearances the [defense
team] has already undergone to be able to go into the detention
facility, it’s really a restriction where there’s no reason
for it,” he said.

According to the accused’s counsel, the restrictive terms of
their client’s confinement also make it incredibly difficult to
discuss evidence — much of which they say the prosecution has not
released. Additionally, Tsarnaev’s attorneys insist a starting
date next fall does not provide adequate planning time at all.

"This is not a level playing field," defense attorney
Miriam Conrad told the court. "It appears the government is
trying to retain every possible advantage in this case for
itself."

But despite complaints from the defense, prosecuting attorneys
insist they have acted fully in compliant with the rules and have
presented all that is needed for a fair trial to soon start.

“We have voluntarily stepped up, combed through all of our
files carefully, to identify both evidence that the defense has
identified as mitigating and that we have identified as
mitigating, early so they have the benefit of that evidence,”
Assistant US Attorney William Weinreb said according to the
Chronicle. “We’ve erred on the side of caution, and we’ve
produced everything we believe corresponds to genuine categories
of favorable material evidence that they could use.”

Conrad and other counsel for Tsarnaev aren’t convinced, however,
and said, “There’s an overlap between evidence related to the
crime itself and evidence related to the punishment.

“The question is, ‘When does the government have to provide
this mitigating evidence?’” Conrad asked.

“The fact that we are in the pre-trial phase expands rather
than contracts the government’s disclosure obligation,”
Conrad added to the Boston Herald. “The withholding of
information shouldn’t be reviewed with the benefit of hindsight
after a trial.”

“The government has nothing to hide,” Weinreb said. “We
are not in any way attempting to inhibit the defense from
conducting a thorough investigation of this case. Obviously, it
was a potential death-penalty case from the start. They don’t
have to open their files to us and we don’t have to open our
files to them.”

Along with his older sibling, Tamerlan, prosecutors say Dzhokhar
Tsarnaev committed the biggest act of terrorism on American soil
since September 11, 2001. His next hearing is scheduled for
February 12 at 10 a.m. in Boston.